Decision #60/23 - Type: Workers Compensation
The worker is appealing decisions made by the Workers Compensation Board ("WCB") that his vocational rehabilitation plan in National Occupational Classification (NOC) 6421, Retail Sales, is appropriate; that he is capable of earning $540.00 per week as of November 12, 2022; and that his permanent partial impairment award has been assessed and paid correctly. A hearing was held on March 22, 2023 to consider the worker's appeal.
1. Whether or not the vocational rehabilitation plan within National Occupational Classification (NOC) 6421, Retail Sales is appropriate;
2. Whether or not it is appropriate to implement a post-accident deemed earning capacity of $540.00 per week effective November 12, 2022; and
3. Whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated.
1. The vocational rehabilitation plan within National Occupational Classification (NOC) 6421, Retail Sales is not appropriate;
2. It is not appropriate to implement a post-accident deemed earning capacity of $540.00 per week effective November 12, 2022; and
3. The worker's permanent partial impairment rating and monetary award have not been correctly calculated.
The worker has an accepted claim for an abdominal injury that occurred at work on August 27, 2019 when several pieces of drywall fell and struck his abdomen. The worker reported worsening pain in his stomach by that evening. The worker's accepted diagnosis was later updated to a recurrent ventral hernia after he underwent surgeries to repair the mesh from a pre-existing ventral hernia injury and an infection that occurred. The worker underwent further surgery for an "Incarcerated massive ventral hernia, recurrent" on June 2, 2020.
On September 16, 2020, the worker attended an initial physiotherapy assessment post-surgery. The worker reported pain over the majority of his abdomen, especially the left upper and right lower quadrants, pain with lifting, twisting or direct pressure, and occasional numbness over the surgical incision site. The physiotherapist recorded painful range of motion in the worker's lumbar spine area, reduced extension, flexion and rotation bilaterally, and decreased light touch and pinprick sensation along the L4, L5 and S1 dermatomes of the worker's lower leg and foot on the right. It was noted the worker was 15 weeks post abdominal wall reconstruction surgery, and gentle strengthening and trunk mobility exercises were recommended. Up to 20 visits were authorized, and the worker continued to participate in physiotherapy, with the physiotherapist noting the worker's progress was slow due to the severity of the surgery and complications related to the worker's previous surgeries. The physiotherapist therefore requested an extension for further treatment on November 20, 2020, and on November 23, 2020, the WCB approved an additional 12 sessions.
Due to ongoing difficulties, the worker underwent a CT scan on January 3, 2021 and the worker's physiotherapy treatment was placed on hold on January 27, 2021 at the recommendation of his treating surgeon. On February 22, 2021, physiotherapy treatment restarted, with the worker reporting intermittent pain over the upper left and lower right quadrants of his abdomen, pain with lifting, bracing/bearing down, twisting and sitting for long periods, and intermittent numbness on the plantar aspect of his right foot. Reduced range of motion and painful extension and rotation in the worker's right abdomen were noted. The physiotherapist noted that the worker's gastrointestinal and stomach issues had delayed recovery, and recommended the worker remain off work. Additional physiotherapy treatment was requested, and 8 additional sessions were approved by the WCB on March 30, 2021.
On June 8, 2021, the worker's treating physiotherapist provided the WCB with a narrative report setting out the results of functional testing of the worker and requesting approval for the worker to be enrolled in a 6-week reconditioning program, with the expectation he would be capable of a full return to his previous work duties at the completion of the program. The worker's file was reviewed by a WCB physiotherapy advisor, and on June 30, 2021, the WCB approved funding for the 6-week reconditioning program.
On July 6, 2021, the worker's file was reviewed by a WCB physiotherapy advisor to determine if the worker was eligible for a permanent partial impairment rating and award. The physiotherapy advisor opined that the worker was likely at maximum medical improvement and noted the approved reconditioning program would not have an impact on the impairment rating. The advisor opined that the evidence on file supported the worker had a major pre-existing ventral hernia condition related to the permanent partial impairment. The advisor noted he had discussed the worker's file with a WCB general surgery advisor, who opined that if not for the pre-existing condition, the compensable workplace injury would not likely have required surgery, and that "The need for both surgeries is related to the combined effect of the pre-existing surgical history with previous recurrent hernias and the workplace injury." On July 28, 2021, the worker contacted the WCB to advise he felt he "pulled something" during his physiotherapy session that day.
The worker attended for a permanent partial impairment call-in examination with the WCB physiotherapy advisor on August 13, 2021. After examining the worker and comparing the worker's abdominal scarring with the folio of images on file with the WCB, the advisor opined the worker had a 2.00% cosmetic permanent partial impairment rating. The WCB physiotherapy advisor went on to opine that as a result of the worker's pre-existing condition, scarring from the surgeries was limited to the same areas where the worker had undergone previous surgeries related to that pre-existing condition. As such, due to the pre-existing condition, the worker's 2.00% cosmetic permanent partial impairment rating was reduced by 50% to 1.00%. On September 21, 2021, the WCB advised the worker that he was entitled to a 1.00% permanent partial impairment rating and a monetary award of $1,430.00 based on that rating.
On December 2, 2021, the worker requested that Review Office reconsider his permanent partial impairment rating and award. The worker noted in his submission that his stomach was deformed and would not return to the way it was before the August 27, 2019 workplace accident due to the reconstruction surgery, and the scars on his face were the result of that accident.
The worker's treating physiotherapist provided a discharge report to the WCB dated December 2, 2021, following the worker's completion of the reconditioning program. On December 16, 2021, the WCB general surgery advisor reviewed the discharge report and recommended restrictions of avoidance of lifting greater than 10 kg./25 lbs.; avoidance of pushing and pulling of similarly weighted objects; and avoidance of forceful flexion and extension at the waist, noting that these were considered to be permanent. The restrictions were provided to the employer on the same date. On February 10, 2022, the employer advised the WCB that they could not accommodate the worker's permanent restrictions and the WCB referred the worker for vocational rehabilitation services.
On February 14, 2022, Review Office determined that the worker's permanent partial impairment award had been assessed and paid correctly. Review Office placed weight on and agreed with the opinion of the WCB physiotherapy advisor, and found the calculations performed by the advisor were done correctly and in accordance with the WCB's policies and regulations, including the 50% reduction due to the worker's pre-existing condition, and that the monetary award of $1,430.00 had been correctly assessed and calculated. Review Office further stated that they were unable to find evidence to suggest the worker had any facial issues as a result of the compensable injury and that any facial scar issues were unrelated and not ratable.
On February 16, 2022, the WCB rehabilitation consultant contacted the worker to conduct an initial assessment. After gathering information from the worker, a Vocational Rehabilitation Plan for the worker under National Occupational Classification (NOC) 6421, Retail Sales was developed, with a start date of May 9, 2022 and an end date of November 11, 2022. It was noted that on completion of the Plan, it was anticipated the worker would be capable of earning a minimum of $494.00 per week and his WCB benefits would be reduced accordingly. On September 8, 2022, the Vocational Rehabilitation Plan was amended to note the worker would be capable of earning $540.00 per week due to an increase in the provincial minimum wage rate set to take place on October 1, 2022.
The worker's treating family physician provided a progress report to the WCB for an examination of the worker on September 8, 2022. The treating physician reported the worker's complaints of right-sided abdominal pain, which was functionally limiting, and noted the worker sustained a secondary injury during the reconditioning program. In a letter to the WCB dated September 20, 2022, the family physician noted the worker's "…long history of multiple significant abdominal surgeries leading to chronic pain…," which was significantly exacerbated while he was participating in the reconditioning program for his workplace injury. The physician went on to note that the worker's permanent restrictions were appropriate given the worker's condition, but asked that the WCB consider training the worker in an alternate line of work which was less physically-demanding.
On October 3, 2022, the worker requested that Review Office reconsider the WCB's decision that the worker was capable of working within NOC 6421 and earning $540.00 per week effective November 12, 2022. In his submission, the worker noted he was in continued pain due to his workplace injury and did not believe he would be capable of returning to work by November 2022.
On October 20, 2022, the worker appealed Review Office's February 14, 2022 decision regarding his permanent partial impairment rating and award to the Appeal Commission.
On November 30, 2022, the WCB advised the worker by letter he had been given an extra week of job search assistance to November 18, 2022, after which his wage loss benefits would be reduced. On December 2, 2022, a WCB deem committee determined the worker was capable of working within NOC 6421, Retail Sales as of November 11, 2022 and effective November 12, 2022, he was capable of earning $540.00 per week.
On January 5, 2023, Review Office determined that the worker's vocational rehabilitation plan in NOC 6421, Retail Sales was appropriate and he was capable of earning $540.00 per week as of November 12, 2022. Review Office noted the current restrictions on file were in keeping with the general duties of NOC 6421, Retail Sales, and the worker was considered capable of working within that NOC. Review Office found the vocational rehabilitation services offered to the worker were reasonable and the worker was considered capable of working within NOC 6421 as of November 12, 2022. Review Office therefore found the worker was capable of earning the deemed post-accident average earnings of $540.00 per week in NOC 6421, and the request for reconsideration was denied.
On January 16, 2023, the worker appealed Review Office's January 5, 2023 decision to the Appeal Commission. On January 19, 2023, the Appeal Commission spoke with the worker and a hearing was arranged for all three issues under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's accident are applicable.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker.
Subsection 27(20) of the Act deals with compensation in the form of academic, vocational and rehabilitative assistance to injured workers, and provides as follows:
Academic, vocational, rehabilitative assistance
27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker
(a) could, in the opinion of the board, experience a long-term loss of earning capacity;
(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or
(c) requires assistance in the activities of daily living.
Section 38 of the Act deals with compensation in the form of an impairment award. Subsection 38(1) provides that the WCB "shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provides a formula to determine the monetary value of an impairment award. The dollar amount in that formula is adjusted on an annual basis pursuant to the Adjustment in Compensation Regulation (the "Regulation").
WCB Board Policy 43.00, Vocational Rehabilitation (the "VR Policy"), explains the goals and describes the terms and conditions of academic, vocational, and rehabilitative assistance available to a worker under subsection 27(20) of the Act. It is noted that such assistance is referred to as vocational rehabilitation and "…is intended to help a worker achieve maximum physical, psychological, economic and social recovery from the effects of a work-related injury or illness."
Part B of the VR Policy provides, in part, as follows:
I. Goals and Objectives
1. The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests.
2. The WCB will help the worker as much as possible to be as employable as she or he was before the injury or illness. Once this is done and when necessary, the WCB will provide reasonable assistance to the worker so that she or he actually returns to work. However, services may not always continue until the worker actually returns to work. 3. Vocational rehabilitation strives to return workers to the salary level they were earning before the injury or illness.
WCB Policy 188.8.131.52, Post-Accident Earnings – Deemed Earning Capacity (the "Deem Policy"), describes when a worker will be deemed capable of earning an amount that he or she is not actually earning and how the deemed earning capacity will be determined. The Deem Policy states, in part:
Generally speaking, the WCB will deem an earning capacity in one of two situations: in the context of vocational rehabilitation or in the context of a recurrence following a voluntary reduction in earnings unrelated to the compensable injury.
In the context of vocational rehabilitation, the Policy provides, in part, as follows:
1. DEEMED EARNING CAPACITY AND REHABILITATION:
a) Deemed earning capacity will typically be demonstrated in the context of vocational rehabilitation activity. Generally, vocational rehabilitation is designed to maximize the worker's post-accident earnings and keep the loss of earning capacity to a minimum. Detail on the goal and process for vocational rehabilitation within the WCB is provided in WCB policy 43.00, Vocational Rehabilitation.
b) The decision to use deemed earning capacity will be secondary to the more important consideration of developing and completing an effective vocational rehabilitation plan. Deemed earning capacity will generally be used as a last resort after all reasonable or available vocational rehabilitation/ re-employment options have been exhausted.
WCB Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy") addresses impairment benefits. The PPI Policy provides that such benefits are calculated by determining a rating that represents the percentage of impairment as it relates to the whole body.
The PPI Policy states that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible, and reasonable, impairment ratings (with the exception of impairment of hearing ratings) will be established strictly in accordance with Schedule A to the Policy.
Schedule A to the PPI Policy provides that permanent impairment from a workplace injury is evaluated for the following deficits: • loss of a part of the body; • loss of mobility of a joint(s); • loss of function of any organ(s) of the body identified in the Schedule; and • cosmetic disfigurement of the body.
Section 9 of Schedule A deals with a cosmetic rating for disfigurement, which is described as an "altered or abnormal appearance." Section 9 provides that the "rating for disfigurement is done by a WCB Healthcare Advisor and the degree of disfigurement is determined on a judgmental basis." Section 9 also provides that in order to maintain consistency in ratings for disfigurement and to make the ratings as objective as possible, the WCB's Healthcare Services Department will make reference to a folio of disfigurement ratings established in previous cases.
The worker was self-represented, and was accompanied by his spouse at the hearing.
The worker's position with respect to the first two issues is that the vocational rehabilitation plan within NOC 6421, Retail Sales is not appropriate, and it is not appropriate to implement a deemed earning capacity. The worker's further position, with respect to the permanent partial impairment award, was that scarring to his face is a direct result of his workplace accident and should have been assessed and included in calculating his cosmetic impairment and award.
The worker submitted that the WCB failed to consider medical reports from his treating healthcare providers which indicated he had suffered a secondary injury during the reconditioning program and was disabled as a result. The worker said he did not know about the restrictions until they were sent to the employer. The worker stated that he had no experience in sales.
The worker submitted the WCB had provided him with little help with respect to the Vocational Rehabilitation program and he was not able to apply for work. He did not have a firm resume which he could provide to prospective employers. He did not have a cell phone or a computer. The WCB kept sending him lists of job openings by mail, most of which were from an online site, with applications to be made online. He said he had tried to phone some employers, but they would not deal with him over the phone and told him that he had to apply online.
With respect to the permanent partial impairment award, the worker described how a piece of the drywall broke and fell down onto his face at the time of the accident, then rolled across his face. The worker said he cleaned the wounds as well as he could in his vehicle and in the bathroom. The worker said there is no medical report with respect to this as he did not go to the hospital for his facial wounds. He noted his case manager was well aware of his facial injury as he met with him soon after he was discharged from hospital and he saw the scars.
The employer did not participate in the appeal.
Issue 1: Whether or not the vocational rehabilitation plan within National Occupational Classification (NOC) 6421, Retail Sales is appropriate.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the vocational rehabilitation plan for employment in National Occupational Classification (NOC) 6421, Retail Sales, was not appropriate for the worker. The panel is able to make that finding, for the reasons that follow.
The evidence shows that the worker had spent most of his working life working in construction and renovations. While the WCB initially proposed a plan in NOC 6733, Custodian, it was subsequently determined that this was not appropriate given his restrictions, and a vocational rehabilitation plan was developed for NOC 6421, Retail Sales.
The panel is not satisfied, based on the totality of the evidence, that the vocational rehabilitation plan itself or the services offered or assistance provided were reasonable as contemplated under the VR Policy.
The panel recognizes that NOC 6421 is a broad classification, but is nevertheless satisfied that it was not appropriate for the worker in this case. In this regard, it was noted in several places in the file that the worker had made it abundantly clear that he was not a people person and had difficulty working directly with people. The worker further indicated that he did not have any experience in the sales world.
While the worker had indicated that he would be interested in applying at certain specific places which would be more in keeping with his background, the panel has concerns that the work he would be doing at those places would fall outside his restrictions. When asked about this, the worker stated that he was not anticipating having any restrictions when he talked about those positions and did not know anything about his restrictions until later. The worker stated the restrictions came after he injured himself during the reconditioning program, when his condition had worsened.
The panel notes that the WCB had an obligation to undertake a proper assessment to determine whether the designation of NOC 6421 was suitable or appropriate in the circumstances. The panel is not satisfied that a proper or sufficient assessment was done with respect to the worker's background or capabilities. The panel notes, for example, that while reference was made to the worker's having completed Grade 12 and one year post-secondary, this appears to have been 25 years previously, and the worker indicated that no one made further inquiries about his academic standing. The panel further notes, for example, that while there were references to the worker having had criminal convictions in the past, a criminal records check does not appear to have been done or considered although it may have been relevant with respect to different employment opportunities.
In addition, as part of the vocational rehabilitation plan, the worker was to be offered help with respect to developing a resume, the option to participate in basic computer skills building workshops for the purpose of job searching, and a 22-week job search period with requested assistance.
While some efforts were made to develop a resume for the worker, the panel is satisfied that the evidence shows there was a lack of follow-up on this process, and no resume was completed. In a memorandum to file of a December 8, 2022 conversation between the worker and the vocational rehabilitation consultant, it was noted that in going through the file, the worker and the consultant came to the conclusion there was little follow-up and "possibly both sides of the relationship…dropped the ball a little." The worker questioned how he was supposed to be able to properly apply for work without a resume.
The evidence also indicates that while the worker attended for an assessment with respect to a computer skills building workshop, he encountered difficulties with this option and it does not appear to have been pursued.
With respect to the 22-week job search period, the evidence shows that the WCB periodically provided the worker with lists of a "variety of job leads to assist with your job search." The lists show and the worker indicated at the hearing, that the leads were identified as per the internet. The worker had indicated, however, that he did not have a cell phone or computer, and did not have access to these postings through the internet site. The panel notes that the WCB sent these lists by mail to the worker, and the worker indicated at the hearing that the WCB kept "bombarding" him with mail but he did not know how to apply for these jobs. The worker stated that although phone numbers for these employers were not provided, he tried to contact some employers by phone, but they would not talk to him and told him he had to go online.
In the circumstances, the panel is satisfied, on a balance of probabilities, that the vocational rehabilitation plan for employment in National Occupational Classification (NOC) 6421, Retail Sales, was not appropriate for the worker. The panel therefore finds that the vocational rehabilitation plan within National Occupational Classification (NOC) 6421, Retail Sales is not appropriate.
The worker's appeal on this issue is allowed.
Issue 2: Whether or not it is appropriate to implement a post-accident deemed earning capacity of $540.00 per week effective November 12, 2022.
In light of our decision on Issue #1 above, that the vocational rehabilitation plan within National Occupational Classification (NOC) 6421, Retail Sales, is not appropriate, the panel is unable to find that it is appropriate to implement a post-accident deemed earning capacity of $540.00 per week effective November 12, 2022.
The worker's appeal on this issue is allowed.
Issue 3: Whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's permanent partial impairment rating and monetary award have not been correctly calculated.
The panel notes that the worker has been assessed for a cosmetic impairment rating only at this point in time. Based on that assessment, the worker received a permanent partial impairment rating of 1.00% and award of $1,430.00 for a cosmetic impairment relating to scarring on his stomach.
In response to questions at the hearing, the worker indicated that he was not so concerned with the 2.00% cosmetic rating he had received for the scarring on his stomach, or the reduction of the rating by 50% to 1.00% because of a major pre-existing condition, noting that he already had scarring on his stomach in the same area because of previous surgeries. The worker confirmed that his big issue on the appeal was that the WCB did not consider his facial scarring as being related to his workplace accident or provide a rating for that scarring.
The worker testified at the hearing that he was cut at the time of the accident, and cleaned up the wound himself. The panel questioned the worker at length with respect to the incident and surrounding circumstances. The worker said that a co-worker was there and would have seen the accident and the injury to his face. While the worker did not know the co-worker's name, he was able to describe him in some detail.
The worker also indicated that he has a fairly extensive medical bag or first aid kit because he used to work for himself, and he cleaned up the wound and treated it by putting on "those slow sutures that you put on yourself…it's like a stitch, but…I did it myself." In response to a question from the panel, the worker's spouse further confirmed, when asked by the panel, that the worker's face was fine when he left for work that morning, but was not so fine when he came home from work.
The worker's evidence was that the case manager was aware of his facial injury and scarring. The panel accepts that evidence. When asked about a June 9, 2020 note to file and other notes on file which refer to photos, the worker stated that these were photos of his face and his stomach, and the case manager had wanted him to send them in to be placed on the file. The panel notes, however, that we were unable to locate any such photographs on file.
The panel acknowledges that there is a lack of any reference to a facial injury in the medical reports close in time to the date of the accident. The panel finds, however, that this is not fatal to the worker's position. The panel accepts that worker's evidence that he suffered a facial injury at the time of the accident, which he tended to himself, and that the injury resulted in scarring. The panel notes that photographs were taken of the worker's face at the time of the call-in examination, yet the facial scarring was not assessed or rated at that time. In the circumstances, the panel is satisfied that the facial scarring should have formed part of the assessment for a cosmetic impairment rating in this case.
Based on the foregoing, the panel finds that the worker's permanent partial impairment rating and monetary award have not been correctly calculated.
The worker's appeal on this issue is allowed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of May, 2023